Law, Culture and Women's Inheritance Rights in ... - Leitner Center

Where the intestate is survived either by more than one spouse or by one spouse and children
of another spouse or of a nonmarital relationship, each spouse shall be entitled absolutely,
together with her children, to the marital home occupied by her and her children and to the
household chattels in that home, to the exclusion of other spouses, children, and family unless
the other spouses, children, or family prove that they contributed substantially to the purchase the
house or chattels. [FN223]
2. To provide adequately for the surviving spouses and children in situations where there are
multiple surviving wives and/or multiple sets of children, we recommend that the statute be
amended to allow departure from the fractions set forth in Law 111 for distributing the residue of
the estate if equity and good conscience would so dictate.
Section 54(1) of the Courts Act, Act 459, provides: “In determining an issue, the Court shall
apply such principles as to do substantial justice between the parties having regard to equity and
good conscience.” [FN224] Assuming that the statute is amended to allow each wife to inherit
her marital home and chattels, we *303 recommend that, where there are multiple wives and/or
sets of children, judges not be bound by the fractions set forth in Law 111 to distribute the
residue of the estate. Rather, they should be allowed to depart from the statutory fractions in
order to ensure that the distribution scheme provides adequately for all spouses and children. By
exercising such discretion, judges could better ensure an equitable distribution given the
particular circumstances of the intestate. For example, multiple wives need not be forced to share
the designated 3/16 portion but could be provided with a greater part of the residue. Such a
departure would better reflect the economic contribution of multiple spouses and avoid unjust
enrichment of the parents and customary successor. In addition, judges could provide adequately
for wives and children who were not living in a house owned by the intestate at the time of his
death and for children born out of wedlock, as these parties might not be entitled to a share in a
house and household chattels if sections 3 and 4 were amended as suggested above. In addition,
judges could take into account the age and economic means of the various children of the
intestate in providing for an equitable distribution of the residue among the children. [FN225]
For example, in the case before Justice Henry Kwofie discussed above, a man died leaving
four wives, four concubines and a total of twenty-five children. Under the existing scheme, the
four wives and all the children inherited one of the four houses in the estate. [FN226] Not
surprisingly, the house had to be sold and the proceeds divided. If the statute were amended,
each of the four wives would have been entitled to the home in which she lived and any
household chattels. The court could *304 ensure an equitable result for the nonmarital children
by allocating to them a greater share of the residue.
This recommendation would require the qualification of sections 5, 6, and 7 with the
following language:
Where there are multiple surviving spouses, children of multiple spouses, and/or nonmarital
children, members of the judiciary are not required to distribute the residue of the estate pursuant
to the fractions set forth above if equity and good conscience would dictate otherwise.
B. Problems of Proof
In addition to the unfairness created by Law 111's failure to take into account polygyny,
surviving spouses routinely face a number of procedural and practical obstacles to claiming their
rights under the law. In theory, because the law uses the gender-neutral term spouse, widows and
widowers alike face these problems. In practice, however, the burden is much greater on widows.
Because the law treats property acquired during marriage as belonging to the husband, widows